Murder Case in Jeopardy After Error by Prosecutor

Attorney-client phone calls were put before grand jury

Robert M. Griffin thought nothing of the disc, until he popped it into his computer and listened. The Walpole defense lawyer was astounded by what he heard.

The CD, which had been introduced to the grand jury by Bristol County Assistant District Attorney Aaron T. Strojny, contained an illegally recorded phone call between Griffin and his client, Jonathan Niemic, a murder suspect being held without bail at the Dartmouth House of Corrections.

The disc also included a privileged voicemail Niemic left for Griffin, relaying specific information about search warrants being executed by police at various locations after the killing.

“I was — and still am — stunned,” Griffin, the former chief of Superior Court prosecutions in the Suffolk County DA’s Office, told Lawyers Weekly. “There’s no right more sacrosanct to the process than the attorney-client privilege. For them to do this to me and my client is really one of the most shocking and reprehensible things I’ve ever seen.”

In response, Griffin has filed a motion, scheduled to be heard on March 28, that requests a judge dismiss the indictment with prejudice.

If Griffin is successful, prosecutors will be permanently barred from trying Niemic on charges that he stabbed a Fairhaven man outside an Alcoholics Anonymous meeting in October 2010.

The motion comes just months after Superior Court Judge John P. Connor Jr. ruled that prosecutors in the case improperly seized and read Niemic’s incoming and outgoing mail without a warrant.

“[T]he government conduct is outrageously egregious in that an attorney for the Commonwealth caused a Grand Jury subpoena to issue to the Sheriff to secure privileged attorney-client communications and then took the additional step of presenting those privileged communications as evidence,” Griffin wrote in the filing. “[T]he court must dismiss the indictment.”

Bristol County DA C. Samuel Sutter Jr. declined to comment on how the misstep occurred or the fact that Strojny is no longer assigned to the case.

A spokesman for Sheriff Thomas Hodgson said the department is investigating the incident.

‘Office looks really bad’

Boston attorney David R. Yannetti, a former Middlesex County homicide prosecutor, said Strojny violated his duty to carefully analyze evidence before introducing it to the grand jury.

With the telephone calls marked as an exhibit, the court must assume the jurors listened to the CD and deemed it relevant to their probable-cause analysis, Yannetti said.

“You’d like to think when you’ve attained a status within a DA’s office where you’re handling murder cases, it’s because you’ve put the proper time into preparing your cases and have a good understanding of what you can and can’t do,” he said. “With what’s at stake — a guy being held without bail and a family probably seeking justice — the idea that a prosecutor did this makes him and his office look really bad.”

Recently retired U.S. District Court Judge Nancy Gertner said she was “floored” by the blunder. She added that it was the first such error she had heard of in her 39 years as an attorney.

While judges rarely agree to the draconian sanction of dismissal with prejudice, the judge assigned to decide Griffin’s motion may have no choice, Gertner said.

“You don’t easily dismiss murder cases,” she said. “But on the other hand, it’s really hard to imagine, short of perjury-creating evidence, what kind of rights violation would be as egregious as this.”

The question for the court will be whether the case can proceed untainted, she said.

“My initial reaction is that I don’t see how you disentangle the information gleaned as a result of this violation from any charge going forward, given the damage that was done,” she said. “We assume an officer of the court pays attention to what he’s doing. It’s hard to imagine what the explanation would be for how this could happen.”

Several prosecutors and defense lawyers familiar with the case said newly assigned ADA Maryclare Flynn will likely argue Strojny inadvertently introduced the disc.

It is expected that she will ask for permission to re-present the case to a new grand jury without using the confidential communications.

Gertner, now a professor at Harvard Law School, said she does not believe such a solution would eradicate the damage, as the prosecution would still be privy to the Griffin-Niemic conversations and could develop derivative evidence from them.

“The fact that no one was aware of what was going on until [Griffin] told them about it is simply outrageous,” she said. “If we forgive this kind of inattentiveness, we are really lowering the standards for prosecutors to a level [that] is extraordinary.”

Although the initial blame lies with the Bristol County Sheriff’s Office for including the privileged calls on the disc, Gertner said, Strojny had ample opportunity to discover the error before introducing the CD as an exhibit.

“There were so many steps along the way where this could’ve been detected,” she said. “The fact it got as far as it did, where the prosecutor included it as evidence in the case, warrants a real sanction.”

Un-ringing the bell

Joseph F. Krowski of Brockton said any sanction short of dismissal with prejudice sends a dangerous message to the bar.

The criminal defense attorney, who recently convinced a judge to dismiss without prejudice another Bristol murder case due to prosecutorial misconduct, said there is no way to get around the fact that communications between a lawyer and his client are now in the public domain.

“A client needs to know he can say anything to a lawyer and that it’s going to be privileged,” he said. “What they’ve done is contaminate the whole process; there’s got to be a real prophylactic ruling where the court says the case is over for good.”

While Boston appellate attorney Dana A. Curhan agrees that the proceedings are “clearly tainted,” he said it is highly unlikely a judge will bar prosecutors from putting the case before a new grand jury.

“It might be difficult to untangle this, but it’s not impossible,” he said. “Based on the caselaw that’s been developed in this area over the years, I just don’t see a murder case being dismissed with prejudice, even on something as egregious as this.”

Curhan, who argued a seminal government misconduct case before the Supreme Judicial Court in 1987 when he oversaw appeals in the Bristol County DA’s Office, said judges set an intentionally high bar for the type of prejudice necessary for such a sanction.

Even so, Curhan said, DA Sutter would be wise to ask for a special prosecutor not connected with his office to take over the case.

“It’s hard to fathom how something this bad could happen,” he said. “The question is whether you can un-ring the bell. There probably are ways of doing it.”

Former Prosecutor: Blunder Never Should’ve Happened

While prosecutors have long subpoenaed and — controversially — used defendants’ recorded telephone calls in their cases, they have done so with the clear understanding that conversations between lawyers and clients are strictly off limits.

So when the Bristol County Sheriff’s Office responded to a grand jury subpoena by erroneously including communications between accused murderer Jonathan Niemic and his attorney, Robert M. Griffin of Walpole, it was clear a major error had been committed. That error was compounded when the prosecutor in the case introduced the calls as an exhibit to the grand jury.

Rep. Christopher M. Markey, D-Dartmouth, who served as second assistant DA under former Bristol County DA Paul F. Walsh Jr., said he is “embarrassed,” as a former prosecutor, that such an error could occur.

When the Bristol County DA’s Office received the CD, the following steps should have been taken, according to Markey:
• The prosecutor should have reviewed the CD;
• As soon as the prosecutor heard Griffin’s voice on the CD, he should have stopped listening;
• At that point, the prosecutor should have alerted Griffin, the court and the sheriff of the error;
• If necessary, the prosecutor should have submitted an affidavit to the court documenting what happened and what steps he took in response.

“Whether it was laziness or intentional, there is no excuse,” Markey said. “I hope for the victim’s family’s sake, the remedy the court arrives at doesn’t hurt the case.”
— David E. Frank